The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the three primary sources of international law yield important rules restricting the use of force. The rules on use of force, like all international law rules, are binding on states for the same reason the law of any jurisdiction binds - because it is accepted as law by the community.

The following remarks on the rules regulating the use of force are divided into three parts. Part I provides a brief history and overview of the current rules on the use of force. Part II applies these rules to assertions that the United States could lawfully attack Iran today. Part III then discusses why these rules are binding as law and answers arguments to the contrary. These remarks will, therefore, touch on the past, present, and future of the law on the use of force to preserve the peace between states.

Lech Garlicki (Judge, European Court of Human Rights; formerly, Judge, Constitutional Court of Poland), Krzysztof Wojtowicz (Univ. of Wroclaw), & Malgorzata Masternak-Kubiak (Univ. of Wroclaw) have posted the Poland chapter from the forthcoming volume The Role of Domestic Courts in Treaty Enforcement - A Comparative Study, edited by David Sloss and Derek Jinks. Previously posted chapters can be found here and here.

Thursday, July 31, 2008

The Washington Post, in today's paper, helpfully editorializes on the Medellín case. Interestingly, the Post, though urging a temporary stay of execution, does not refer to the International Court of Justice's provisional measures order. Here's the Post editorial:

The case of a Mexican national on death row in Texas continues to roil the international community and subject the United States to criticism that it is unwilling to live up to treaty obligations. Congress is in the best position to deliver a legitimate fix. It must do so, and soon.

José Ernesto Medellín was born in Mexico but lived from childhood with his parents in Texas. Mr. Medellín was convicted and sentenced to death in 1994 for his part in the gang rape and murder of two teenage girls. Deep into his appeals process, Mr. Medellín's lawyers argued that he deserved a new trial because Texas officials had failed to inform him that under the Vienna Convention on Consular Relations he was entitled to speak with Mexican consular representatives. The United States is among about 160 signatories to the convention.

Texas courts concluded that Mr. Medellín's Vienna Convention challenge was moot because he failed to raise it earlier in the proceedings. The International Court of Justice, the judicial arm of the United Nations, later ruled that the United States was obligated to provide "review and reconsideration" of the cases of Mr. Medellín and 50 other Mexican nationals in similar situations. President Bush ordered Texas to provide such a review, but the Supreme Court concluded in March that the international court's judgment was not binding on Texas and that the president lacked the constitutional authority to order the state to comply. Mexico has now renewed its challenge in the international court; Mr. Medellín is scheduled to be executed Tuesday.

Mr. Medellín has asked the Texas Board of Pardons and Paroles for an eight-month reprieve. The board should recommend such a reprieve, and Gov. Rick Perry (R) should grant it. In granting a reprieve, the state would in no way be backing off its defense of its own sovereignty; it would be giving federal lawmakers time to craft an acceptable legislative solution that would allow the United States to honor its treaty obligations -- and, in return, hold the moral high ground when insisting that its citizens be afforded consular access overseas.

Rep. Howard L. Berman (D-Calif.), chairman of the House Foreign Affairs Committee, has introduced legislation that would allow foreign nationals to challenge convictions if they are not informed of their right to consular access. Mr. Berman should be commended for tackling the problem, but the legislation should be scaled back significantly so that it applies only to the existing cases of the 51 Mexican nationals. Instead of creating new rights for foreign nationals, lawmakers should consider other ways to enhance compliance with the treaty. One possibility: The federal government could fund training programs for state and local jurisdictions; jurisdictions would receive money annually as long as they were in compliance. But lawmakers must not let disagreement over a future enforcement mechanism derail passage of a narrower bill.

Governments around the world are facing increasingly complex challenges in the exercise of territorial sovereignty and maritime jurisdiction – and a growing number are arguably losing the battle, sometimes with catastrophic consequences. IBRU’s 20th anniversary conference will address a topic of growing concern to governments, scholars and boundary practitioners: The State of Sovereignty.

IBRU began work in 1989, the year that saw the fall of the Berlin Wall and the first use of the term ‘the borderless world’. Two decades on, borders are still very much with us but the geopolitical setting in which they exist has changed dramatically. The changing nature of sovereignty in a globalising world has attracted attention from a wide range of disciplines, but the practical implications of such changes for boundary-making, management and dispute resolution have rarely been examined in depth.

This major international conference will provide scholars and practitioners with an opportunity to reflect on the impact of the geopolitical upheavals of the last twenty years, and to exchange ideas about the meaning and function of sovereignty and international boundaries today and in the decades ahead.

Call for papers

The conference will be interdisciplinary in approach and global in scope. We invite proposals for panels or papers on the following themes:

Wednesday, July 30, 2008

Yesterday, at its business meeting, the Senate Foreign Relations Committee ordered favorably reported the following treaties:

Protocol on Explosive Remnants of War (Protocol V) to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects (Treaty Doc. 109-10);

Amendment to Article 1 of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects (Treaty Doc. 109-10);

Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (Treaty Doc. 106-1);

Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) Additional to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects (Treaty Doc. 105-1);

Protocol on Blinding Laser Weapons (Protocol IV) Additional to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects (Treaty Doc. 105-1);

The International Convention for the Suppression of Acts of Nuclear Terrorism (Treaty Doc. 110-4);

The Amendment to the Convention on the Physical Protection of Nuclear Material (Treaty Doc. 110-6);

The Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Treaty Doc. 110-8);

The Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (Treaty Doc. 110-8);

Agreement on Extradition between the United States of America and the European Union, together with 22 bilateral instruments that subsequently were signed between the United States and EU Member States in order to implement the Agreement (Treaty Doc. 109-14);

Extradition Treaty between the United States of America and the Republic of Latvia (Treaty Doc. 109-15);

Extradition Treaty between the United States of America and the Republic of Estonia (Treaty Doc. 109-16);

Extradition Treaty between the Government of the United States of America and the Government of the Republic of Bulgaria (Treaty Doc. 110-12);

Treaty on Mutual Legal Assistance in Criminal Matters between the United States of America and the Kingdom of Sweden (Treaty Doc. 107-12);

Agreement on Mutual Legal Assistance between the United States of America and the European Union, together with 25 bilateral instruments that subsequently were signed between the United States and each EU Member State in order to implement the Agreement (Treaty Doc. 109-13);

Treaty on Mutual Legal Assistance in Criminal Matters between the United States of America and Malaysia (Treaty Doc. 109-22);

Treaty between the United States of America and Romania on Mutual Legal Assistance in Criminal Matters, signed on September 10, 2007 (Treaty Doc. 110-11);

Agreement on Certain Aspects of Mutual Legal Assistance in Criminal Matters between the Government of the United States of America and the Government of the Republic of Bulgaria, signed at Sofia September 19, 2007 (Treaty Doc. 110-12);

International Convention on the Control of Harmful Anti-Fouling Systems on Ships (Treaty Doc. 110-13);

1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (Treaty Doc. 110-5);

Protocol Concerning Pollution from Land-Based Sources and Activities to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, with Annexes (Treaty Doc. 110-1);

Protocol Amending the Convention Between the United States of America and Canada with Respect to Taxes on Income and on Capital, as Amended by the Protocols done on June 14, 1983, March 28, 1984, March 17, 1995, and July 29, 1997 (Treaty Doc. 110-15);

Convention Between the Government of the United States of America and the Government of Iceland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, and accompanying Protocol (Treaty Doc. 110-17);

Convention Between the Government of the United States of America and the Government of the Republic of Bulgaria for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion With Respect to Taxes on Income, with accompanying Protocol (Treaty Doc. 110-18).

Recent decades have witnessed an impressive process of normative development in international law. As a result, international relations have now reached an unprecedented level of normative density and intensity. While these developments clearly have some positive implications - e.g., they promote the rule of international law, advance important values and facilitate inter-state cooperation - they also present several theoretical challenges worthy of further investigation. One major challenge identified by the International Law Commission (ILC) has been the fragmentation of international law. According to the ILC report on the subject, in the absence of a central authority in international relations, the rapid normative development by different and uncoordinated legal regimes might lead to "conflicts between rules or rule-systems, deviating institutional practices and, possibly, the loss of an overall perspective on the law." One somewhat neglected specific aspect of legal fragmentation is the existence of situations in which distinct international legal rules direct similar or identical behavior, that is, situations governed by multi- sourced equivalent norms (Please see more on multi-sourced equivalent norms/MSENs below.) In 2007, the Leonard Davis Institute for International Relations and the International Law Forum of the Hebrew University of Jerusalem established a research project addressing this field. The participants in the study group are Lorand Bartels (Cambridge University), Tomer Broude (Hebrew University), Guy Harpaz (Hebrew University), Moshe Hirsch (Hebrew University), Andre Nollkaemper (University of Amsterdam), Joost Pauwelyn (Graduate Institute of International and Development Studies, Geneva), Yuval Shany (Hebrew University) and Isabelle Van Damme (Cambridge University).

AIMS OF THE CONFERENCE: The conference will present the work of the study group and other scholars and practitioners interested in the methodological and theoretical questions associated with the creation and operation of MSENs. TOPICS: Among the topics to be discussed in the conference are: The relations between normative and institutional fragmentation as illustrated by the creation and application of MSENs MSENs and questions of jurisdiction and applicable law before international courts and tribunals Analysis of specific case studies illustrating problems that the application of MSENs may entail The operation of MSENs in specific branches of international law Harmonization of background principles governing MSENs and the need for institutional cooperation Fragmentation, MSENs and 'post-modern anxieties' - evaluation of the discourse on MSENs The focus on MSENs would hopefully enable the conference participants to closely examine the impact of differences background principles (e.g., interpretative principles, responsibility allocating principles, exceptions and defenses) and norm-applying institutions on the fragmentation of international law, and to develop a better understanding of international fragmentation, the problems it creates and the solutions which may or may not be developed to address it.

LOGISTICS: The conference will be held at the Hebrew University of Jerusalem on 24-25 May, 2009. The papers presented in the conference will be published online as a International Law Forum working papers on http://www.ssrn.com/ and subsequently, (subject to a refereeing process) published in a special law journal symposium or in a collection of essays.

PAPER SUBMISSION PROCEDURE: Respondents to the call for papers are requested to submit a one page proposal + their curriculum vitae to:

CONTACT: Prof. Yuval Shany - email: yshany@mscc.huji.ac.il - by no later than 1 Nov. 2008. The selection committee - comprised of all members of the aforementioned study group - will complete the selection process by 1 Dec. 2008. Successful applicants are expected to deliver their draft papers by 1 May 2009. The conference will incur the travel (economy-class) and accommodation costs of the selected participants.

MSENS: MSENs can be defined as two or more norms which are (1) binding upon the same international legal subjects; (2) similar or identical in their normative content (in the words of the ILC, "point in the same direction"); and (3) have been established through different international instruments or "legislative" procedures or are applicable to different substantive areas of the law. MSENs may be found virtually all fields subject to international regulations, including economic relations (where parallel standards may be created by trade and investment instruments - e.g., the national treatment principle), the protection of human rights and the environment (where parallel standards may be created by regional and global standards - e.g., the ICCPR and the ECHR, UNCLOS and the parallel EC Regulations) and use of force (where parallel standards may be created by treaty and customary law standards - see e.g., Nicaragua).

Monday, July 28, 2008

Myron H. Nordquist (Univ. of Virginia - Center for Oceans Law and Policy), Rüdiger Wolfrum (International Tribunal for the Law of the Sea), John Norton Moore (Univ. of Virginia - Law), & Ronán Long (National Univ. of Ireland, Galway - Law) have published Legal Challenges in Maritime Security (Martinus Nijhoff Publishers 2008). Here's the abstract:

Maritime security is a major challenge for the international community that cuts across a broad spectrum of scholarly disciplines and maritime operation. This volume provides in-depth analysis of current international and regional approaches to maritime security, cargo, port and supply chain security, maritime information sharing and capacity building. The work describes measures in place at multilateral and regional levels to improve information sharing and operational coordination regarding security threats to shipping, offshore installations and port facilities. Several chapters address measures aimed at reducing acts of piracy and armed robbery against shipping at sea. This edited volume contains articles by government officials, senior naval and coast guard commanders as well as by leading jurists and academics.

Sunday, July 27, 2008

Donald R. Rothwell (Australian National Univ. - Law) has posted the Australia chapter from the forthcoming volume The Role of Domestic Courts in Treaty Enforcement - A Comparative Study, edited by David Sloss and Derek Jinks. Previously posted chapters can be found here.